Can you defame someone with a hyperlink?

It's gone all the way to the top. Tomorrow, Canada's Supreme Court will …

"If I lose there won't BE an Internet in Canada," Jon Newton wrote me this morning as he prepared to step aboard a Vancouver Island seaplane. "Just a shadow."

Newton is on his way across Canada this morning to Ottawa, where Canada's Supreme Court will tomorrow consider a key question for the Internet age: can a mere hyperlink be defamation?

"Gang of Crookes"

Newton is the publisher of p2pnet, a site which has for years chronicled the online file-sharing world. Back in 2006, Newton wrote a piece about local Vancouver businessman Wayne Crookes, the owner of West Coast Title Search Ltd. Crookes had just sued a man named Mike Pilling for writing allegedly defamatory articles about Crookes and publishing them on the Internet (Crookes had previously fired Pilling from Canada's Green Party, in which Crookes volunteers).

Pilling's articles relied on the obvious pun here, using titles like "Friends of Crookes" and "Gang of Crookes." In covering the free speech aspects of the case, Newton linked to the articles in question. Crookes demanded Newton remove those links, saying that Newton himself could be liable for defamation. Newton refused; Crookes sued.

Jon Newton

Newton's piece was read by less than 2,000 people, but the lawsuit spawned by that article has now progressed to Canada's highest court, where the judges will rule for the first time on the liability that Internet users have for the hyperlinks they create.

Who cares? Everyone who uses the Internet. Imagine Twitter and Facebook—two sites that are rife with user-created hyperlinks—in a world where users could be held liable for everything at a linked location. Or imagine a search engine like Google, one which specializes in providing hyperlinks to a huge array of content, legal and otherwise. Liability, made too broad, could be nothing less than an Internet-killer (at least in Canada).

Crookes says that, by linking to defamatory articles, Newton became a "publisher" of that material. It's an argument that raises questions about the nature of the hyperlink. Does it "incorporate" all the linked material into the original post? Is it a suggestion to go read the linked piece? Is it merely a bibliographic footnote?

The Canadian Internet Policy and Public Interest Clinic (CIPPIC), which has intervened on Newton's behalf, draws an analogy: "If two friends are walking past a sign with defamatory statements on it, and one friend, points it out the other, the law should not make the friend who points to the sign liable as a publisher of defamatory statements on that sign. This is all the more so with hyperlinks."

CIPPIC argues that a hyperlink "merely 'identifies' the location of the source of the information found at a different and independent location form the primary article." It's not an "invitation" to read it. Besides, a hyperlinked piece can be hundreds of pages long; should linkers really be considered responsible for every statement made at a link? What if they are linking to something they disagree with?

Look ma, I'm a publisher!

Complications

But the issue isn't simple. Even CIPPIC notes that links could be defamatory if "the hyperlinker knowingly endorsed and adopted the defamatory statements found in the linked second article." As one of the appellate judges in the case noted, saying something like "the truth about Crookes can be found here" and linking "here" might be a very different thing from a mere bibliographic link.

Indeed, the Honourable Madam Justice Prowse of the Court of Appeal for British Columbia lays out a host of factors that are relevant: the prominence of the link, words of "invitation of recommendation" to read it, suggestions about what might be found at the link, etc.

As for Crookes himself, he wants to go even further and proposes a truly extraordinary understanding of hyperlinks. "The characterization of a hyperlink as being comparable to a footnote for a reader of written material, or a card index in a library is not an apt analogy," he tells the Supreme Court:

It is not sensitive to the interactive nature of the internet and how information is obtained through the internet. The characterization of a hyperlink as comparable to a footnote ignores the immediacy of a hyperlink… The creation of a hyperlink actually embeds the referred to material in the primary article… The utilization of a hyperlink, if it is analogous at all to the footnote in written material or a card index in a library, would be analogous only if the material accessed by the hyperlink were stapled to the written material or card index.

This argument has gone basically nowhere so far. Crookes lost at the trial court level and (despite Madam Justice Prowse) at the appellate level, where the other two justices disagreed. Newton's link, said one justice, was (contra Crookes) "most comparable to a footnote for the reader, or a card index in the library. It is not… a snippet from the article."

Will the Supreme Court agree? As CIPPIC puts it, if Newton loses, the ruling could "chill hyperlinking which in turn undermines the communicative force of the Internet and deters innovation of new, expression-enhancing platforms that may not develop due to fear of defamation actions."